Fairfield City Council v McCall - [2022] NSWPICPD 15

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Fairfield City Council v McCall [2022] NSWPICPD 15
APPELLANT:	Fairfield City Council
RESPONDENT:	Gregory George McCall
INSURER:	Self-insured
FILE NUMBER:	A1-W683/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	29 April 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 14 July 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – procedural fairness – onus of proof – inferences drawn – discussion of Jones v Dunkel [1959] HCA 8; 101 CLR 298 – adequacy of reasons – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Ms L Goodman, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Wright
DATE OF MEMBER’S DECISION:	14 July 2021

INTRODUCTION

This appeal is against an award for weekly compensation and related medical and treatment expenses. Mr McCall, the respondent worker, a long term employee of Fairfield City Council, the appellant, successfully relied on s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) to establish injury to the back.
The deemed date of injury after a contest was found by the Member to be 24 September 2019.
Mr McCall alleged that his injury was the result of the nature and conditions of employment including, in particular, the operation of a one man garbage truck with associated jolting and jarring. He further alleged the necessity to regularly climb in and out of the vehicle with associated twisting and turning placed which stress and strain on the back.
Although there were initially defences based on ss 254, 255 and 261 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), those defences were not pressed at the hearing before the Member and form no part of the appeal.
The Member summarised the issues between the parties in the following terms:
“In a section 78 notice dated 19 February 2020 the [appellant] relied upon the reasons given in the previous notice and also disputed that injury was sustained in accordance with section 4 of the 1998 Act; and that any medical condition is not causally connected to the injury in the workplace. The [appellant] also relied upon section 9A or in the alternative that employment was not the main contributing factor to the cause or aggravation of a disease process. The [appellant] also disputed capacity for work and section 60 expenses. The [appellant] relied upon the report of Dr Edwards dated 5 February 2020.”[1]
[1] McCall v Fairfield City Council [2021] NSWPIC 242 (the reasons), [3].
The Member made an award for weekly compensation from 24 September 2019 to 20 December 2019 plus medical and treatment expenses.

BACKGROUND

There is no challenge to the facts as found by the Member and what follows is taken from the reasons.
Mr McCall commenced his employment with the appellant in 1985. He continues working for the appellant in the garbage collection division.
From 1985 to 1989 he worked as a garbage bin collector, which meant that he was required to collect the bins and empty them into a compactor. From 1989 he worked almost exclusively as a garbage truck driver driving the garbage trucks, including compactors, but from time to time he would collect bins.
From 2004 onwards Mr McCall drove a one man garbage truck. The Member said:
“While driving the one man garbage truck and the earlier trucks, he was constantly jarred and jolted. He stated that he was constantly twisting, turning and climbing regularly in and out of the vehicle and this involved twisting of the body with associated stresses and strains. He stated that three times per day he would empty the bin at the tip at Lucas Heights, which had an unsealed surface. [Mr McCall] stated that he was more heavily jolted and jarred while driving over that surface.”[2]
[2] Reasons, [12].
The Member recorded that Mr McCall said that he experienced episodes of low back pain and he was involved in a motor vehicle accident in 1994. This accident resulted in a number of months off work. The Member said Mr McCall did not recall suffering much, if any, ongoing pain in relation to his lower back, but did experience post-traumatic stress disorder. Mr McCall recalled further episodes of lower back pain, including in about 1995 in the course of driving his truck and being jolted and jarred. He stated this was not a single event but took place over a period of time.
The Member said:
“[Mr McCall] also stated that he continued at his work with the [appellant] until March 2018. He said that leading up to March 2018 he had very similar symptoms affecting his lower back and pain going down his left leg all the way to his big toe. He stated that he also became aware of a burning sensation at the bottom of both feet. He consulted Dr Nicholas and was again referred to Dr Linklater. He stated that he had a number of injections which were initially reasonably effective but not as effective as the first one had been in 2005.
[Mr McCall] stated that his lower back condition did not settle completely and then became worse again. He said that the injury became worse particularly through the middle part of 2019 until he was unable to work from 24 September 2019 and he remained off work until 20 December 2019. In that period he took a combination of sick leave and long service leave.”[3]
[3] Reasons, [16]–[17].
The respondent worker obtained a certificate of no capacity for work from his General Practitioner dated 27 December 2019. This certificate covered the period 24 September 2019 to 20 December 2019. He had up to this point received sick leave payments.
Dr Poplawski qualified by Mr McCall and Dr Edwards qualified by the appellant were in agreement and the Member found that the worker had a pre-existing lumbar spondylosis.[4] The issue between the parties was whether the pre-existing lumbar spondylosis had been aggravated by the nature and conditions of employment as a garbage truck driver whilst employed by the appellant.
[4] Reasons, [145].
The appellant relied on Dr Edwards opinion that Mr McCall had not suffered any injury at work that his symptoms were due to the underlying degenerative changes in the lumbar spine as reported on MRI.[5]
[5] Reasons, [142].
The Member found against the appellant saying:
“146. I accept the opinion of Dr Poplawski that the nature and conditions of [Mr McCall’s] employment as a one man garbage truck driver, and the associated jolting and jarring, resulted in a cumulative injury to the lumbar spine starting on 12 March 2018 and continuing thereafter at a lesser level with further specific aggravation on 24 September 2019. I find on the balance of probabilities that [Mr McCall] sustained an aggravation of the underlying lumbar spondylosis as a result of the nature and conditions of [Mr McCall’s] employment and the associated jolting and jarring in the truck from 12 March 2018 to 24 September 2019.
147. The test of ‘main contributing factor’ should be decided on the evidence overall and is not purely a medical question. It involves a broad evaluative consideration of potential competing causative factors[6]. The opinion of Dr Poplawski was that [Mr McCall’s] employment with the [appellant] was a substantial contributing factor to the aggravation of the pre-existing lumbar spondylosis. Dr Poplawski did not provide his opinion in relation to whether employment was the main contributing factor to the aggravation of the underlying lumbar spondylosis.
148. In my view, there are no competing causative factors in relation to the aggravation of the underlying condition of lumbar spondylosis. The evidence is that from about 2004 the applicant [Mr McCall] had no significant problems with his lower back and was able to continue with his normal duties until March 2018. There were also no competing causative factors in the period until 24 September 2019. I accept Dr Poplawski’s opinion that [Mr McCall’s] employment was a substantial contributing factor to the aggravation of the underlying condition of lumbar spondylosis. Accordingly, I find that [Mr McCall’s] employment with the [appellant] was the main contributing factor to the aggravation of his underlying condition of lumbar spondylosis.
149. I find that [Mr McCall] sustained injury within the meaning of section 4(b)(ii) of the 1987 Act, being an aggravation in the course of [Mr McCall’s] employment from 12 March 2018 to 24 September 2019 of the underlying condition of lumbar spondylosis.
150. I find that the first date of incapacity resulting from this injury was 24 September 2019.
151. Pursuant to section 16(1)(a)(i) of the 1987 Act, the injury is deemed to have happened on 24 September 2019.”
[6] Referring to AV v AW [2020] NSWWCCPD 9, [70], reviewing (at [71]–[72]) decisions including State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
The Member’s reasons for rejecting the evidence of Dr Edwards and preferring that of Dr Poplawski were detailed and cogent.[7] In summary the Member said Dr Edwards:
(a)    Did not consider the applicant’s case of aggravation of an underlying degenerative condition.
(b)    Did not take a history of the applicant’s driving duties.
(c)    Recorded Mr McCall had no problems with his back after 2004 for a period of 15 years until 2018 when his back started to get sore again. He said that Mr McCall did not describe any incident or injury.
[7] Reasons, [142].
The Member expanded on these matters emphasising that Dr Edwards did not consider the effect of the jolting and jarring while driving the garbage truck on the underlying condition. The Member viewed this as important in the context of Dr Edwards conclusion that Mr McCall had not sustained any injury at work on 12 March 2018 or generally. It was also relevant to the reasons that Dr Edwards had not discussed the jolting and jarring when he opined that employment at 12 March 2018 was not a substantial contributing factor to the injury.[8]
[8] Reasons, [143]–[144].
The Member discussed the certification of Mr McCall’s incapacity by Dr Nicholas in a Certificate dated 27 December 2019 which post-dated the claim for weekly compensation. He accepted Mr McCall’s explanation for the certificate being dated after the period of incapacity as it was supported by the clinical notes of Dr Nicholas and by the report of Dr Nicholas dated 15 January 2021.
On that basis the Member made the following finding:
“156. I find that [Mr McCall] had no current capacity for work for the period 24 September 2019 to 20 December 2019 as a result of the aggravation of his pre-existing lumbar spondylosis as a result of his employment from 12 March 2018 to 24 September 2019.”
The Member made an award for weekly compensation and medical expenses.

CERTIFICATE OF DETERMINATION

The Personal Injury Commission issued a Certificate of Determination in the following terms:
The Commission finds:
1. [Mr McCall] sustained injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), such injury being deemed to have happened on 24 September 2019, being an aggravation in the course of [Mr McCall’s] employment in the period from 12 March 2018 to 24 September 2019 of the underlying condition of lumbar spondylosis.
2. [Mr McCall] had no current capacity for work for the period 24 September 2019 to 20 December 2019 as a result of the aggravation of his pre-existing lumbar spondylosis deemed to have happened on 24 September 2019 as a result of his employment from 12 March 2018 to 24 September 2019.
The Commission determines:
1. [Appellant] to pay [Mr McCall] pursuant to section 36(1) of the 1987 Act weekly compensation:
(a)for the period 24 September 2019 to 30 September 2019 at the rate of $2,177.40 per week, and

(b)for the period 1 October 2019 to 20 December 2019 at the rate of $2,195.70 per week.

2. [Appellant] to pay [Mr McCall’s] reasonably necessary medical, hospital and related treatment expenses pursuant to section 60 of the 1987 Act as a result of [Mr McCall’s] injury, being aggravation of a pre-existing condition of lumbar spondylosis, with a deemed date of injury of 24 September 2019.
3. The Commission notes that the [appellant] has paid leave entitlements to [Mr McCall] in the above periods and credit is to be given to the [appellant] for payments made.”

ON THE PAPERS

The appellant submitted in its initial submissions dated 9 August 2021 the matter should not be determined on the papers because a transcript of the proceedings was not available at that time and further because the appellant was of the opinion that the grounds relied upon were such as to require an opportunity for an oral hearing.
On 25 August 2021 the appellant filed further submissions in support of the appeal after it had received the transcript of the proceedings. No further reference was made to the application for an oral hearing.
The respondent submitted the appeal could be determined on the papers as the transcript of the proceedings had been received and the appellant had finalised its submissions.
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.

NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

The jurisdiction provided in subsection 352(5) of the 1998 Act is:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

THRESHOLD MATTERS

The parties submit that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. I accept those submissions.

GROUNDS OF APPEAL

The appellant relies upon four grounds of appeal:
(a)    error of law in determining the matter on a basis not put by or to the parties (Ground A);
(b)    error of law in reversing the onus of proof or failing to properly consider it (Ground B);
(c)    error of law in incorrectly drawing an adverse inference against the appellant (Ground C), and
(d)    error of law in failing to give adequate reasons (Ground D).

SUBMISSIONS

Ground A: Denial of procedural fairness

Appellant’s submissions

The appellant’s initial submissions submitted that the reasoning in paragraphs [99], [103], [126], [128] and [144] and elsewhere were not matters which were put by or to the parties. As this submission was developed, it was submitted that determination of a matter on a basis which is not put by or to the parties constitutes is a denial of procedural fairness and an error of law.
With the benefit of the transcript of evidence, the appellant expanded the submissions with respect to Ground A of the appeal.
It submitted that the matters set out in paragraph [99] of the reasons were not put to the parties, that the matters set out in paragraph [103] “were not put in those terms by or to the parties”.
With respect to paragraph [126] of the reasons, the appellant submits that the particular reading of the report of Dr Loefler was not advanced on behalf of the respondent worker. Furthermore, what was set out in paragraphs [128], [129] and [130] of the reasons was not put by or to the parties and did not form any part of the respondent worker’s consideration of the report of Dr Loefler at first instance.
The first sentence of paragraph [144] of the reasons was not put by or to the parties nor was a characterisation or qualification in respect to the report of Dr Edwards in those terms advanced on behalf of the respondent worker.
In relation to paragraph [132], “in particular the assertion that an inference should be drawn in respect of Dr Foo”, the appellant complains that no submission to that effect was put on behalf of the respondent worker and the proposition was not put to the appellant. The relevant submissions on behalf of the respondent worker can be found at the top of page 22 of the transcript. The appellant submits “Counsel for the Respondent worker did not make a submission that there should be an inference in respect of any report of Dr Foo (and nor could any such submission properly be made)”. The appellant relies further in support of this submission on what is submitted with respect to Ground C.
The appellant submits:
“[D]etermining a matter on a basis not put by or to the parties constitutes a denial of procedural fairness and an error of law. As the matters identified have clearly influenced the determination made by the Commission Member the errors are as such as should result in the Certificate of Determination being revoked.”[9]
[9] Appellant’s submissions following receipt of transcript, 25 August 2021, [6].

Respondent’s submissions

The respondent submits that in relation to paragraph [99], the Member was dealing with a submission made by the appellant employer that the date relied upon by the respondent (the applicant worker in the proceedings below) of 24 September 2019 as the deemed date of injury, was not in fact the first date of incapacity and therefore could not be the date of injury.
The respondent submits:
“The Appellant Employer has not shown how or why merely by referring to ss 15 and 16 and the decision in Collingridge the Member has fallen into error. The Respondent Worker clearly relied on the disease provisions to support his claim for injury. It is submitted by the Respondent Worker that the Member has not erred.”[10]
[10] Respondent’s submissions, [10], citing Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31.
With respect to paragraph [103] of the Member’s reasons, the respondent submits that the Member was there in fact dealing with the submission put by the respondent worker that it is in fact the relevant incapacity that is determinative. That is to say, incapacity claimed from the injury not incapacity from many years previously.
In paragraph [126] of the Member’s reasons, the Member is dealing with the medical evidence and expressing his opinion regarding that evidence.
At paragraph [128] of the Member’s reasons, the Member is dealing with the report of Dr Loefler and ultimately what weight ought be attributed to it.

Appellant’s submissions in reply

In reply the appellant submits that its complaint with respect to the Member’s reasons is that the appellant was denied procedural fairness because the matters in paragraph [99] were not the subject of submission and were not raised with the appellant.
The appellant submits that the respondent, in effect, essentially concedes error on the part of the Member in the analysis of the medical evidence because the assessment of the medical evidence relied upon by the Member was not the subject of submissions nor was it raised with the parties.

Consideration

A difficulty with the appeal is precisely what procedural fairness in this matter is required. Procedural fairness as a generality requires that the case against the appellant should be known and the appellant be given an opportunity to respond to the case advanced by the respondent.[11] However the general statement is to be applied in the context of the procedure established by the legislation for dealing with compensation matters.
[11] Kioa v West [1985] HCA 81; 159 CLR 550, 582 per Mason J (as his Honour then was).

It important to have regard to Pt 5 of the 2020 Act, in particular s 42(1) directing that the guiding principle be to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
Furthermore, s 43 directs the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
An important issue between the parties was whether the deemed date of injury was 1994 as contended for by the appellant or 24 September 2019 as the respondent submitted. Paragraphs [99]–[103] of the reasons are directed to resolution of this issue. If the appellant’s submission had been accepted, the respondent’s claim would have been paid by a previous insurer of the appellant.
The Member rejected the submission as “misconceived at the level of first principles”.[12]
[12] Reasons, [98].
The complaint made by the appellant is that the Member’s conclusion was based on considerations other than those advanced by the respondent worker or put to the appellant employer. But, with respect, the issue was live as recorded by the Member at [96]–[97] of the reasons and the Member was required to determine the issue in accordance with the evidence, the parties’ submissions and legal principle.
In answer to the appellant’s submission as recorded at [96] of the reasons, counsel for the worker raised Stone v Stannard Brothers Launch Services Pty Limited[13] and Alto Ford Pty Limited v Antaw[14].[15]
[13] [2004] NSWCA 277 (Stone).
[14] [1999] NSWCA 234 (Antaw).
[15] See transcript of proceedings of 3 June 2021, p 44.
The Member correctly identified that the submission being made by the worker on the basis of those cases was that there “may be more than one deemed date of injury for aggravations of a disease process after further periods of employment and further periods of incapacity”.[16] That was the principle upon which the worker based his case against the appellant. It was for the appellant to answer that case if it could.
[16] Reasons, [97].
The Member’s task was to determine whether or not that was the correct legal principle or whether the contrary, as advanced by the appellant at [96] of the reasons, was correct. The issue was live between the parties. It was up to the parties to advance such authorities as were relevant to that issue in support of their arguments.
There was no denial of procedural fairness because the appellant was given proper opportunity to ventilate and advance submissions in support of its contentions.
It is plain from what is said by the Member at [101]–[103] of the reasons that the Member placed reliance upon the statement of principle contained in Stone and Antaw. Thus at [103] the Member said:
“While it might be said that the decision of Hodgson JA in Stone related to the question of different dates deemed for the differing purposes of incapacity and impairment, in my view it also shows that what must be considered is the time when physical incapacity results in some loss of wages, and whether such incapacity occurs after employment has aggravated the underlying disease condition. The first step then is to consider whether there has been injury, being an aggravation of an underlying disease, including whether there has been a further aggravation as a result of further employment.”
That disposed of the primary submission of the appellant recorded by the Member at [96] of the reasons.
Paragraphs [126], [128], [129] and [130] concern the method of treating Dr Loefler’s reports.
Dr Loefler was a treating specialist. He recorded such history as was relevant to his treatment of the symptoms being complained of by the worker at the time.[17]
[17] See Dr Loefler’s reports dated 27 August 2018 and 30 September 2019, Application to Resolve a Dispute, pp 32–33.
The appellant’s submission recorded in the transcript on pages 9–10 was that Dr Loefler’s view was contrary or inconsistent with Dr Poplawski. The appellant submitted Dr Poplawski suggested there was a precipitating incident and that was “specifically inconsistent [with] the contemporaneous record” of Dr Loefler about there being no precipitating incident.
The appellant submitted further that Dr Loefler’s view was not clarified by a further report, notwithstanding the respondent’s solicitor had requested a further report and the Member should infer from that that Dr Loefler’s further evidence would not assist the respondent.
The Member summarised Dr Loefler’s reports. He noted that there was no precipitating incident identified and that was confirmatory of the conclusion that there was no incident or event on 12 March 2018. The interpretation and analysis of the history obtained by Dr Loefler was before the Member. It was a matter of specific submission by the solicitor representing the appellant. The Member was required to determine whether the submission should be accepted. The appellant was given the opportunity of responding to and making submissions. The Member, having addressed the submission, found against the appellant. There was no denial of procedural fairness.
The appellant’s point concerning the absence of a further report from Dr Loefler at transcript page 11, that “the overwhelming inference is that Dr Loefler, who’s the treating specialist, does not support the [respondent] and the [respondent’s] allegations in response to that correspondence otherwise we would reasonably expect it to be before you” is addressed by the Member at [127] of the reasons:
“The [respondent] submitted that the report of Dr Loefler had not been received and no finding could be made in this regard. I accept the [respondent’s] submission on the basis that the report has not been received. It is speculative in my view to infer that that the opinion of Dr Loefler would not have assisted the [respondent] in these circumstances and I decline to make the inference.”
The principles derived from Jones v Dunkel[18] depend upon there being an unexplained failure by a party to give evidence. The rule has no application if the failure is explained and, in any event, the Commission is not required to draw an inference.
[18] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).
The contrast between Dr Loefler’s non-report and the situation with Dr Foo, the subject of [132] of the reasons, is marked. In relation to Dr Foo, it was not disputed that the worker had been to see Dr Foo at the request of his employer. The worker submitted, as recorded by the Member at [132], that:
“there is no report or evidence from Dr Foo in evidence without explanation from the [appellant] and the inference should be made that the evidence or report of Dr Foo would not have assisted the [appellant].”
The Member said:
“I note that no explanation was forthcoming from the [appellant] in this regard. I accept that the [respondent] was required by the [appellant] to be examined by Dr Foo for the purpose of returning to work and that the [respondent] did so consult with Dr Foo on or about 11 December 2019.”[19]
[19] Reasons, [132].
The proposition that Dr Foo was not an employee of the appellant and therefore could not be the subject of an inference was properly rejected by the Member. It was not disputed that the worker was sent to Dr Foo by the employer. The employer/appellant was therefore in a position to cause Dr Foo to generate a report of his findings or to explain that it had sought a report but that none had been provided.
The rule operates where a party is required to explain or contradict something.[20] The missing evidence of Dr Foo called for an explanation by the appellant. That explanation could have been as simple as the explanation given in relation to Dr Loefler’s absent report, namely, that no report came into existence. But no explanation was given. The Member was entitled to infer as he did and as was submitted by the respondent worker.
[20] Jones v Dunkel, 321.
There is no denial of procedural fairness in my view merely because the Member rejects the evidence of a witness (Dr Edwards) on the basis that the findings of fact as ultimately found by the Member do not accord with the assumptions made by the witness for the purpose of the report. That is not a denial of procedural fairness. It is trite that if the history assumed by the expert is not made out the report is of no value.
Dr Edwards obtained a history: “In 2018, Mr McCall said his back started to get sore again. He did not describe any incident or injury.”[21]
[21] Reply to Application to Resolve a Dispute, p 12.
Dr Edwards said:
“In my opinion, Mr McCall’s employment at 12 March 2018 cannot reasonably be said to be a substantial contributing factor to any injury. Mr McCall drives a single-operator garbage truck. He has to drive the truck and also operate a small robotic arm. He gets out of the truck approximately every 3½ hours to walk around while the truck is being emptied at the tip.”[22]
[22] Reply to Application to Resolve a Dispute, p 17.
But that was not Mr McCall’s case. Mr McCall’s case was that the nature and conditions of his employment resulted in the aggravation of pre-existing spondylosis. Thus the Member rejected Dr Edwards’ report because “Dr Edwards … did not consider the effect of the jolting and jarring whilst driving.”[23]
[23] Reasons, [144].
Apart from an incidental reference (at page 3 of Dr Edwards’ report dated 5 February 2020)[24] that “the reason he reported his complaints on this occasion was that he saw a doctor, who told him his symptoms were due to sitting in a truck, bouncing around and turning from side to side”, Dr Edwards did not acknowledge much less consider the significance of the worker’s history of “jolting and jarring” whilst driving and “bouncing around” in the truck. The Member did not regard Dr Edwards as having factored these elements of the worker’s employment into his diagnostic opinion.
[24] Reply to Application to Resolve a Dispute, p 12.
This was important because the Member accepted Dr Poplawski’s opinion that the nature and conditions of the worker’s employment, with associated jolting and jarring, resulted in a cumulative injury to the lumbar spine starting on 12 March 2018 and continuing thereafter to a lesser level with further specific aggravations on 24 September 2019. That opinion was contrary to the opinion of Dr Edwards.
The Member said:
“… I find on the balance of probabilities that the [respondent] sustained an aggravation of the underlying lumbar spondylosis as a result of the nature and conditions of the [respondent’s] employment and the associated jolting and jarring in the truck from 12 March 2018 to 24 September 2019.”[25]
[25] Reasons, [146].
The Member was entitled to reject Dr Edwards’ opinion. He considered the evidence and the appellant’s submissions. He reached the conclusion that the history obtained by Dr Edwards, which formed the basis of his report, did not accord with the history as found by him.
In my view the appellant has not been denied procedural fairness and Ground A of the appeal is dismissed.

Ground B: Reversal of the onus of proof

Appellant’s submissions

The appellant submits that the Member failed to have proper regard to the onus of proof, in particular the fact that the respondent worker bore the onus and it is submitted that the Member reversed the onus. The appellant submits that this is evident from paragraphs [106], [113] and [119] of the reasons.
In the supplementary submission the appellant says that it identified the matters in which the onus of proof rested with the respondent worker at pages 14 (line 17 and following), page 16 (line 3), page 26 (at about line 8) and page 46 (at about line 21) of the transcript.

Respondent’s submissions

The respondent submits that the appellant has failed to demonstrate how the Member’s reasons have reversed the onus of proof. The submitted paragraphs do not articulate the manner in which the Member is alleged to have fallen into error.
The respondent submits that paragraph [113] records the Member’s view that the history recorded by Dr Poplawski in his report of 25 May 2020 is consistent with the claim brought by the worker that he sustained injury, being the aggravation of a disease, as a result of the nature and conditions of his employment, including jolting and jarring of the truck.
The respondent says of paragraph [119] of the Member’s reasons when he refers to Dr Nicholas’ having noted specific instances of low back pain on 25 November 2013 and 26 November 2015 that the Member was not there dealing with the onus of proof. Rather the respondent says the Member was dealing with medical evidence in respect of earlier periods of incapacity which were therefore not of any significance to the present claim.
Overall, the respondent worker submits that there was no reversal of the onus of proof.

Appellant’s submissions in reply

The appellant submits in reply that the last sentence in paragraph [106] indicates a reversal of the onus of proof. In particular, it was not for the appellant to prove the deemed date of injury but rather for the respondent worker.

Consideration

The appellant does not isolate any issue with respect to which the onus of proof lay on the worker where the Member is said to have reversed the onus. The appellant’s submissions appear to proceed on the premise that where in submissions it has asserted the worker failed to satisfy the onus of proof and the Member found against the appellant’s submission, that must have been the result of the Member having reversed the onus of proof.
A cursory examination of the matters specifically referred to by the appellant in its submissions shows that on the occasions identified by the appellant the onus of proof was not in issue and was not reversed.
The Member at [106] of the reasons said:
“There were submissions from the parties in relation to the report of Dr Pickering, treating psychiatrist, of 17 January 1995. This report diagnosed post-traumatic stress disorder following a motor vehicle accident on 5 October 1994, together with physical problems with pain in the neck, shoulders and lower back. The submissions from the [appellant] related to the argument that the deemed date of incapacity was in 1994, in a period in which the [appellant] was insured by another insurer. As I have not accepted the [appellant’s] argument as to this earlier date of injury, this report is not otherwise relevant.”
I am unable to see how that paragraph, or the final sentence thereof, has any bearing on the onus of proof. It is simply a statement by the Member that a particular piece of evidence is not accepted as relevant and the reasons for that conclusion.
In my view nothing in [113] of the reasons supports the appellant’s proposition that the Member reversed the onus of proof. Likewise, [119] of the reasons does not suggest much less require the respondent to carry any onus of proof.
At transcript page 14, line 17, the appellant submits that Mr McCall bears the onus of proof. At page 16 the appellant submits Mr McCall has failed to discharge the onus of proof. The fact that the Member decided an issue on which the worker bore the onus of proof contrary to the appellant’s submission does not amount to a reversal of the onus of proof by the Member.
The Member could hardly have been unaware that Mr McCall had to prove that the work was the main contributing factor to the aggravation in respect of the disease.
Similarly, at page 46 the assertion that Mr McCall needs to prove the deemed date of injury is not an indication that the Member was unaware of where the onus of proof lay.
Indeed, given the repeated assertion that the onus of proof lay on Mr McCall, it would be surprising if the Member were to misdirect himself on that issue.
There is no evidence in any of the paragraphs or passages identified by the appellant that demonstrates that the Member reversed the onus of proof or was unaware of where the onus of proof lay or failed to apply and require Mr McCall to establish and carry the onus of proof.
In my view, Ground B of the appeal is not made out and is dismissed.

Ground C: Error of law in drawing an adverse inference against the appellant

Appellant’s submissions

The appellant notes that the Member declined to draw an adverse inference from the absence of Dr Loefler’s report but drew an adverse inference from the absence of a report of Dr Foo.
The appellant says (referring to Dr Foo):
“… the absence of any such evidence gives rise to an inference as against the party that would naturally be expected to rely on such evidence. In this case, that party is the Respondent Worker not the Appellant Employer. In the circumstances, the Appellant submits that the only adverse inference that could be drawn by reason of the absence of evidence from Dr Foo was as against the Respondent Worker (as submitted during the arbitration) and not as against the Appellant Employer.”[26]
[26] Appellant’s submissions, [15].
The appellant submits that the error of the Member in this regard is compounded by the reasoning which follows as set out in paragraphs [137]–[138] of the reasons.
In the supplementary submissions the appellant submits that counsel for the respondent worker did not assert that any adverse inference should be drawn by reason of the absence of any report from Dr Foo and the appellant submits that no such adverse inference was available in any event.
In relation to the inference arising regarding the report of Dr Loefler at [127] of the reasons the appellant says that the Member did not correctly record the submission on behalf of the respondent worker regarding the report. The submission is that the respondent worker’s counsel’s submission at page 36 of the transcript was to the effect that she assumed no medical report had been received.
The appellant’s submission is that the same consideration of this question was not applied by the Member to the question of any report from Dr Foo (referring to [132] of the reasons).
The appellant submits further that as the finding of an inference in respect of absence of a report of Dr Foo was, with respect, an error, the reasoning in paragraphs [137] and [138] of the reasons is also erroneous.

Respondent’s submissions

The respondent submits that the Member accepted that Dr Foo was not employed by the appellant employer, but did not accept the appellant employer’s submission that the respondent worker could have asked for Dr Foo’s opinion. The Member inferred that the report of evidence of Dr Foo would not have assisted the appellant employer’s case.
The appellant employer at page 49 of the transcript made a submission that there was an inference arising by reason of the fact that the respondent worker had not relied on any evidence from Dr Foo. The Member did not accept this submission but, in light of the evidence of the respondent worker that Dr Foo had suggested a better quality driving seat, accepted instead that the absence of evidence from Dr Foo allowed him to infer that it would not have assisted the appellant employer’s case.

Appellant’s submissions in reply

The appellant submits:
“At no time was it ever suggested that there could possibly be any adverse inference against the Appellant by reason of the absence of evidence from Dr Foo (and clearly there could not be) despite which the Member has found such an inference. Finding such an inference constitutes a denial of procedural fairness in this circumstance (ground A) and is of itself an error where no such inference was available.”[27]
[27] Appellant’s submissions in reply, [6].

Consideration

This ground of appeal is directed to the inference adverse to the appellant derived from the appellant’s failure to adduce evidence in the form of a report from Dr Foo. It is not disputed that the appellant did not attempt to explain why a report from Dr Foo was not forthcoming. The ground of appeal is not directed to the inference not drawn by the Member with respect to the absent report of Dr Loefler.
Counsel for the respondent worker submitted at transcript page 36 that she did not have a further report from Dr Loefler. The Member at [127] of the reasons accepted that the report had not been received and said:
“It is speculative in my view to infer that that the opinion of Dr Loefler would not have assisted the [respondent] in these circumstances and I decline to make the inference.”

The appellant’s criticism of the Member, in my view, on this aspect of the matter is misconceived.
In Portelli v Tabriska Pty Limited & Ors,[28] Allsop P (as his Honour then was) explained the rule at [53]–[55]. His Honour said:
“53. Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 was called in aid by the appellant in support of the proposition that the primary judge erred in not drawing an inference from the failure to call Messrs Ranger and Kay … Two points should be noted about this proposition. First, it treated the circumstances as such as to require the primary judge to call in aid the ‘rule in Jones v Dunkel’. Secondly, the inference said to be available, when that rule was applied, was one which founded a positive conclusion, contrary to the other evidence, that the group was apparently threatening or belligerent.
54. As to the first point, it has been pointed out on many occasions that it is a matter for the fact finder – jury or judge – as to whether the relevant inference should be drawn: Manly Council v Byrne [2004] NSWCA 123 at [52]; De Groot v The Nominal Defendant [2005] NSWCA 61 at [149]; NSW Bar Association v Meakes [2006] NSWCA 340 at [77]. The inferences licensed by Jones v Dunkel are drawn, if they are to be drawn, once all the evidence is in: Manly Council at [54].
55. As to the second point, the law in Australia is settled and clear that the failure to call some witness or lead other evidence does not entitle a positive inference unfavourable to the party to be drawn either in the absence of other facts capable of supporting that evidence or contrary to a competing inference available from proven facts. The use that can be made of the absent evidence is (a) an inference that it would not have helped the party’s case and/or (b) it makes more readily acceptable the drawing of inferences otherwise available and relevantly unfavourable to the party not leading the evidence …”.
[28] [2009] NSWCA 17.
In the present matter the Member quoted[29] a passage from Manly Council v Byrne[30] the quoted passage accords with the correct understanding of the rule.
[29] Reasons, [137].
[30] [2004] NSWCA 123.
The Member held as a fact, which is not challenged in this appeal, that the worker was sent to Dr Foo by the appellant.[31] The Member held as a fact that there was no explanation forthcoming from the appellant as to why there was no evidence in the form of a report or otherwise from Dr Foo.[32]
[31] Reasons, [131].
[32] Reasons, [132].
The submissions advanced by the appellant, that Dr Foo was not in the employ of the appellant and Mr McCall could have asked for his opinion, were rejected by the Member, in my view, correctly.
In Brandi v Mingot,[33] Gibbs ACJ, Stephen, Mason and Aickin JJ said this:
“Two further comments may be made on this matter. The first is that the foundation of the inference that the absence witness ‘would not have helped the party’s case’ is that the party or his advisers are presumed to know the content of the absent witness’s evidence, otherwise he would not be a witness whom ‘that party might reasonably be expected to call’. A party may thus reasonably be expected to call his own medical advisers, but no such expectation could arise as to medical practitioners who examined him on behalf of other persons and whose reports may not have been available to the party …” (emphasis added).
[33] (1976) 12 ALR 551, 560.
Dr Foo’s evidence was available to the appellant. The appellant commissioned the examination by Dr Foo for the purpose of causing the worker to return to work. The appellant is presumed to know what the evidence of Dr Foo would have established.
The available inference was Dr Foo’s evidence would not have assisted the appellant’s case. The inference was available in the absence of an explanation for why the evidence was not before the Commission. No error by the Member is established.
Nor is the appellant’s complaint that the drawing of the inference by the Member denied it procedural fairness. The Member recorded at [132] that the worker submitted that an adverse inference should be drawn. This meant that the issue was live before the Member and that the appellant had an opportunity to offer evidence and submissions in rebuttal.
The obvious piece of evidence which could have been offered was that no report was available. The appellant offered no explanation for why there was no evidence from Dr Foo. The respondent submitted that an inference adverse to the appellant’s case should be drawn. It was a matter for the Member whether or not such an inference was drawn, having concluded that it was appropriate to draw the inference, no error is demonstrated in the circumstances.
Ground C of the appeal fails.

Ground D: Inadequacy of the reasons

Appellant’s submissions

The appellant says that the reasoning at paragraphs [106] and from [146]–[155] is inadequate. The appellant submits that a simple statement of conclusion or a statement of acceptance of certain evidence does not constitute the giving of adequate reasons because it does not set out the process by which any such conclusion or acceptance was reached.
Further, the appellant submits there are errors in the reasoning process as the result of incorrectly weighing and considering the competing evidence including that of Dr Edwards. The appellant notes, for example, [142] and [143] are not in fact supported by the evidence of Dr Edwards at all.
The appellant submits that the inadequacy of the reasoning of the Commission Member is evident in paragraph [148], firstly, in extrapolating without reason the view of Dr Poplawski as to substantial contributing factor to a finding on the issue of main contributing factor and also in asserting that there were no competing causative factors of the respondent worker’s back condition and in this regard there is reference to a non-work related serious incident at his brother-in-law’s house in 2004, together with references to the respondent worker’s symptoms being aggravated by walking without any concurrent reference to any employment activities.
The appellant does not add to the submissions with respect to the reasons in the supplementary submissions.

Respondent’s submissions

The respondent submits that the Member gave adequate reasons for not accepting the appellant employer’s argument regarding the opinion of Dr Pickering in paragraphs [95]–[106] and for accepting the respondent worker’s employment was the main contributing factor to his pre-existing lumbar spondylosis at [139]–[149].
The Member also gave reasons why he accepted that the respondent worker was unfit for work from 24 September 2019 to 20 December 2019 at [150]–[156].

Appellant’s submissions in reply

The appellant submits that the respondent has adopted the approach of asserting that the reasons were adequate without seeking to address the appellant’s submissions as to the reasons why they were not.

Consideration

There is a lack of specificity as to what conclusions on the part of the Member are complained of as having been reached without adequate reasons in support. The appellant directs attention to paragraphs [106], [146]–[155], [142]–[143] and [148].
It is important to keep in mind that the focus of a complaint with respect to “reasons” is on the adequacy of the reasons given or not given by the Member in support of the conclusion, not on the conclusion itself.
I have dealt with paragraph [106] above. The Member identified why he regarded Dr Pickering’s report as irrelevant. I detect no failure to provide adequate reasons for the conclusion.
The appellant does not identify the deficiency in paragraphs [146]–[155] except to assert that expression of acceptance of evidence does not satisfy the requirement for adequate reasons.
Paragraph [146] is a paragraph expressing the Member’s conclusion having regard to the extensive discussion of Dr Poplawski’s reports previously undertaken at paragraphs [107]–[120] and [134]–[136].
The Member explained why he regarded “substantial contributing factor” used by Dr Poplawski as being sufficient to satisfy the statutory description “main contributing factor” to the aggravation of the underlying condition in the reasons at [147]–[148]. The reasons are adequate to explain the Member’s reasoning process and I do not accept that he erred.
Paragraphs [149]–[151] are plainly conclusionary based on the preceding discussion.
In my view paragraphs [146]–[151] when read in the context of the preceding discussion are adequate to explain the reasoning process and the conclusions reached.
Paragraphs [152]–[155] of the reasons explain why the Member accepted the medical certificate dated 27 December 2019 as evidence of the worker having no capacity for work. In my view they are adequate to permit the appellant to understand why the certificate was accepted.
Paragraphs [142]–[144] of the reasons explain in detail why the Member did not accept Dr Edwards’ opinion. The complaint about the adequacy of these reasons is without substance.
In Beale v Government Insurance Office of NSW,[34] Meagher JA said:
“… reasons need not necessary be lengthy or elaborate … However there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence … Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached …
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
Whilst it is desirable to address these elements in giving reasons for a decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations … In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adopting of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal.”
[34] (1997) 48 NSWLR 430 (Beale), 442.
In Mifsud v Campbell,[35] Samuels JA (agreed to by Clarke JA) said:
“… it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her.”
[35] (1991) 21 NSWLR 725, 728.
The appellant’s complaint with respect to the adequacy of reasons is not established. I reject the appellant’s complaint that the reasons were inadequate or not given at all.
In my view, the reasons fulfil the essential requirements of judicial reasons as outlined by Meagher JA in Beale set forth above and no error is demonstrated. Ground 3 fails.

CONCLUSION

In my view the grounds of appeal are not established and the decision of the Member should be confirmed.

DECISION

The Member’s Certificate of Determination dated 14 July 2021 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

29 April 2022